Argument for Counsel Fees, and Litigation Costs, Must be Made in Pending Litigation

In theory, a workers’ compensation insurance carrier can be required to pay part of, or even the entire, cost of counsel fees owed to the attorney for the injured worker. This is to be awarded any time the insurance carrier lacks a “reasonable basis” to file or defend a litigation. In practice, this is rarely awarded (though, to be candid, we did just receive such an award last week). The costs of litigation incurred by the attorney for the injured worker are to be awarded whenever the injured worker is successful in litigation “in whole or in part.” Recently, the Commonwealth Court of Pennsylvania had to address the process for the award of attorney fees and litigation costs.

Despite the fact that the injured worker had actually returned to work, at the same earnings as before the injury, in its infinite wisdom, the workers’ compensation insurance carrier filed a Petition for Suspension, alleging the injured worker refused reasonable and necessary medical treatment, in the form of facet injections. This concept of a “forfeiture petition” has been addressed before on this blog.

After hearing testimony from the medical experts, and the injured worker, the Workers’ Compensation Judge (WCJ) granted the Petition for Suspension. Upon appeal, however, the decision was reversed by the Workers’ Compensation Appeal Board (WCAB), as there was no evidence presented that the injured worker actually “refused” anything. [We would be remiss if we did not also note something apparently ignored by both the WCJ and WCAB – the NCP, a document issued solely by the insurance carrier, accepted only a strain and sprain; a facet injection would be for a more serious condition, thus, the insurance carrier could not have proven the treatment was even related to the accepted work injury]. Neither party appealed the decision of the WCAB.

The injured worker then filed a Petition for Review, alleging that the WCAB neglected to award counsel fees, given the unreasonable contest, and failed to order the award of litigation costs. Finding that the injured worker should have appealed the decision of the WCAB, the WCJ denied the Petition. This was affirmed by the WCAB.

On further appeal to the Commonwealth Court of Pennsylvania, the decision was again affirmed. The Court found that the proper course of action would have been for the injured worker to appeal the decision of the WCAB. This was more than a simple mathematical or “mechanical” error with the award ordered; instead, this was a failure to make an award at all. The relief sought by the injured worker was not automatic. Though the injured worker argued that he lacked standing to appeal the WCAB decision, having prevailed on the Suspension Petition (only an “aggrieved party” can appeal), the Court disagreed. Since the attorney fees and litigation costs were not awarded, said the Court, the injured worker was “aggrieved.”